Vape manufacturers are copying Big Tobacco’s playbook

Samir Soneji had no idea what he was getting into when he agreed to talk about the potential risks of vaping at the first US E-Cigarette Summit in Washington, DC this past May. His first clue was the booing.

As a professor at the Dartmouth Institute for Health Policy and Clinical Practice, Soneji studies how gaps in tobacco regulation affect health. Two years before the conference, he’d reported in JAMA Pediatrics that young people who smoke hookah or use “snus,” a form of moist smokeless tobacco, are twice as likely to try cigarettes as kids who don’t. He suspected that e-cigarettes, with kid-friendly flavors like “Cinnamon Roll” and “Peanut Butter Cup,” carried a similar risk. And that’s exactly what he and several colleagues discovered in a recent review of studies that tested that possibility.

Evidence that tobacco companies targeted teens and nonsmokers with candy- and fruit-flavored cigarettes prompted the Food and Drug Administration to ban them in 2009 under the Family Smoking Prevention and Tobacco Control Act. But those restrictions do not apply to e-cigarettes and hookahs, even though the FDA extended its authority in August 2016 to include all forms of tobacco.

Soneji figured that people who came to a conference about the science and regulation of e-cigarettes actually wanted to hear the latest science, whatever the data showed. So he told the audience what he and others had found: youth who vaped were more likely to start smoking cigarettes than those who didn’t. What’s more, kids who made the leap from e-cigs to cigarettes probably wouldn’t otherwise have started smoking, he explained, because they didn’t suffer from anxiety or depression or use alcohol or drugs — risk factors associated with youth smoking. He also shared evidence that “fun” candy-flavored e-cigarettes attract kids, just as flavored cigarettes did, and that, because labels often misrepresent nicotine levels in the devices, even kids who think they’re vaping only flavors could be inhaling nicotine.

The booing was not the only sign to Soneji that this was not a typical scientific conference. He later joined a Q&A panel before the morning break. There, a Johns Hopkins researcher who said he consults for pharmaceutical companies and Reynolds American — which makes VUSE, the top-selling e-cig brand in the US — asked the panel when public health officials were going to communicate positive messages about how vaping reduces harm, like they do about using clean needles and condoms to stem the spread of disease. Soneji said it would be premature and dangerous to recommend e-cigarettes to help smokers quit, given the lack of rigorous scientific evidence to support it. Minutes later, the head of an anti-smoking organization rose from the audience to dismiss his call for more evidence as “rubbish.” The crowd laughed and cheered.

Many people in the audience, Soneji would discover, had an emotional or financial interest in vaping — and they didn’t pay up to $1,100 a ticket to hear anyone question the benefits of e-cigarettes. “I didn’t realize just how many people would be from the industry, and whose job and livelihood is [tied] to e-cigarettes,” he says. “Hearing about the harms of vaping came across as threatening to their existence.”

Many people Soneji spoke to after his talk argued that e-cigarettes save lives. They told him it’s the tar in cigarette smoke that causes lung cancer, and since e-cigarettes don’t have tar, there’s nothing to worry about. An ex-smoker-turned-vaper who had opened a vape shop to help others quit smoking told Soneji that his products were safer because they don’t produce cancer-causing tar. While that’s true, Soneji says, “he was very dismissive of any cardiovascular effects around vaping and nicotine, and around the chemical by-products of heating the e-juice.”

“Hearing about the harms of vaping came across as threatening to their existence.”

Public health campaigns have so successfully tied smoking to lung cancer that people often don’t realize more smokers die of cardiovascular and metabolic diseases than of lung cancer. Soneji tried to tell the shop owner, and many others at the summit, that smoking significantly increases the risk of cardiovascular disease and that recent studies suggest e-cigarettes also increase heart attack risk. But they didn’t listen to him. They didn’t understand how anyone could question the value of a product they believe helps people quit one of the world’s deadliest habits.

Online forums are filled with stories from ex-smokers who saw striking health improvements after switching to vaping. “I no longer wake up coughing and hacking up gunk for the first two hours of my day. I’m no longer getting winded doing the smallest things,” reported a member of the E-Cigarette Forum, which calls itself “the voice of vaping since 2007.”

Ex-smokers offer similar testimonials on vaping forums, blogs, and social media groups. The vaping advocacy group Consumer Advocates for Smoke-free Alternatives Association, or CASAA, sells a T-shirt to drive home the point: “Vaping saves lives.”

After the e-cigarette summit, a media outlet called Vaping360 described Soneji as “the speaker with the most tedious and pedestrian boilerplate anti-vaping agenda,” and attacked him and his co-authors as “a who’s who of terrible vaping researchers.”

The attacks on Soneji are similar to those lobbed at any individual who speaks out about the possible harms of vaping. On the Facebook page for the 2016 pro-vaping movie A Billion Lives, a woman who described herself as a tobacco treatment specialist dared to say, “We don’t know yet the exact repercussions of vaping because it hasn’t been around long enough. But we do know it causes [scarring] in the lungs.”

The attacks on Soneji are similar to those lobbed at any individual who speaks out about the possible harms of vaping

Within minutes, a man who’d just posted about how vaping helped him quit smoking told her: “STFU you are an idiot and a moron. Clearly you don’t know wtf to say cause you would rather people smoke.” The next comment is too profanely misogynistic to print.

It’s hard to overestimate the power of personal experience. But personal anecdotes, no matter how plentiful or powerful, are no substitute for scientific evidence derived from rigorously designed studies that test alternate hypotheses and control for confounding factors. Scientists are just beginning to test the effects of vaping on the human lung. A recent review of studies concluded that e-cigarette use may cause “significant” toxicity to the lung, but noted that more research is needed. Long-term studies clearing e-cigarettes as reasonably safe alternatives to cigarettes have not been done. But that hasn’t stopped some vaping advocates from claiming they have.

Just a decade ago, the vaping industry — which includes devices that typically heat nicotine-containing liquids to produce inhalable vapors — was largely the province of small businesses. Today, the market, which is valued at over $10 billion and expected to be worth $34 billion by 2021, is increasingly dominated by tobacco companies such as Reynolds American and Altria (formerly known as Philip Morris).

Many vaping advocates say they’re competing with Big Tobacco, which they fear will stifle innovation. They say that taxes on e-cigarettes will penalize smokers trying to quit and that regulations requiring companies to disclose the ingredients in e-juice and conform to quality standards will bankrupt small entrepreneurs. Some may well be trying to put the tobacco industry out of business. But others have joined forces with some of the same actors and have deployed the same tactics the tobacco industry used to stoke doubts about smoking’s dangers while marketing “safer” delivery systems. They’re enlisting veteran tobacco industry law firms to contest federal oversight in court and partnering with tobacco-funded libertarian groups to fight regulation in states and cities, and they’re rallying armies of ex-smokers who believe vaping saved their lives.

For decades, tobacco control experts worked together to counter marketing campaigns that made smoking sexy. Hard-hitting TV spots featuring smokers disfigured by cancer and speaking through voice boxes, or hooked up to oxygen tanks and gasping for air helped drive a decline in smoking that had begun in the 1960s. But health alliances forged to stop smoking began to crumble in the mid-2000s with the advent of campaigns to promote “reduced harm” products like smokeless tobacco and e-cigarettes. While some of these products — including nicotine patches, lozenges, and gums — have received FDA approval to treat nicotine addiction after clinical trials showed they were safe and effective, others, including smokeless tobacco and e-cigarettes, have not.

E-cigarettes are theoretically safer than cigarettes because they don’t burn tobacco, which produces a noxious mixture of toxic and cancer-causing substances, such as polycyclic aromatic hydrocarbons, aldehydes, and heavy metals like cadmium and arsenic. Instead, the battery-powered devices produce an aerosol mist by heating “e-juice,” which typically contains flavors and nicotine dissolved in solvents (propylene glycol or vegetable or both) that minimize evaporation until the cocktail is inhaled. Proponents of harm reduction, who advocate offering reduced-risk products to those who can’t stop smoking, argue that giving e-cigarettes to smokers is like providing clean needles to IV drug users: individuals can satisfy their craving while reducing their overall disease burden.

Proponents of harm reduction argue that giving e-cigarettes to smokers is like providing clean needles to IV drug users

But for a harm-reduction argument to be valid, policy makers need strong evidence that vaping improves smokers’ health without creating a new set of risks — to both users and nonusers. So far, the evidence for quitting is mixed, while long-term safety remains unknown. A systematic review of studies of e-cigarettes and smoking cessation published last year reported that two clinical trials offer evidence that vaping leads to quitting, but cautioned that they were too small to have confidence in the results. Meanwhile, another review published last year, which included a broader range of studies, concluded that people who used e-cigarettes were actually less likely to quit smoking.

Assessing risks to vapers and bystanders associated with chemicals in e-cigarette vapor has proven difficult because manufacturers keep changing the devices, which now come in over 460 brands and close to 8,000 different flavors.

Some vaping advocates insist that e-cigarettes emit only harmless water vapor — echoing marketing claims — and propylene glycol, the same ingredient used in fog machines. The FDA has deemed e-cigarette flavorings and the solvents propylene glycol and glycerin “generally recognized as safe” for use in food, but that has little bearing on whether they’re safe to inhale. Several studies have detected a range of toxic chemicals in e-cigarette vapor, including diacetyl, which is associated with the severe respiratory disease known as “popcorn lung”; aldehydes, which are probable carcinogens; acrolein, a potent irritant often found in air pollution; and the cancer-causing tobacco-specific nitrosamines that are also found in cigarette smoke. The few studies of people working with theatrical fog machines found that those working closest to the machines had reduced lung capacity — and they weren’t repeatedly sucking propylene glycol into their lungs like vapers do. What’s more, several studies report that heating propylene glycol and glycerin under normal vaping conditions can produce an array of toxic chemicals, including benzene, a known human carcinogen, and fine particles, which can cause heart disease.

Levels of toxic chemicals found in e-cigarette vapor are typically far lower than those found in tobacco smoke, but no one knows the long-term effects of inhaling them.

To figure out whether e-cigarettes reduce harm to smokers, the devices would have to undergo rigorous testing in several clinical trials, just as other nicotine-replacement therapies have. That hasn’t happened. When the Public Health England panel concluded that e-cigarettes are 95 percent safer than cigarettes, it relied on assumptions about risks, not on data derived from carefully controlled studies.

“Theoretical benefits are not evidence,” says Jonathan Klein, scientific director for the American Academy of Pediatrics Julius B. Richmond Center of Excellence, which studies tobacco. To get evidence on relative risks, at a minimum you’d need to track the disease rates of separate groups of people using different products to see if vaping reduces disease outcomes, Klein says. And if you want to protect public health, you’d prevent nonsmokers and young people from getting addicted, he says. “But that’s not the way it’s been approached.”

“Theoretical benefits are not evidence.”

Soneji says you could classify e-cigarettes as a net population benefit if the devices were better than cold turkey at helping adult smokers quit, and they didn’t attract children. Then they’d resemble conventional nicotine-replacement therapy, otherwise known as NRT (think Nicorette gum or Chantix pills). “No kids are really interested in NRT,” Soneji says. “And NRT is better than cold turkey for smokers interested in quitting.”

And though e-cigarette lobbyists compare vaping to needle exchange or methadone treatment, there’s a critical difference, Soneji says: unlike e-cigarettes, methadone isn’t designed to attract people who aren’t already addicted. “It’s not like you can buy mint-flavored methadone.”

E-cigarettes, by contrast, are mass-marketed in flavors that appeal to kids, who can buy them online by clicking a link that says they’re 18 or older. In 2011, at least four years after e-cigarettes hit the US market, just over 3 percent of 6th through 12th graders had tried e-cigarettes. By 2013, over 8 percent had tried vaping. More than a quarter-million kids who’d never smoked cigarettes had tried vaping that year, researchers reported in Nicotine and Tobacco Research; they were nearly twice as likely to start smoking conventional cigarettes as kids who didn’t vape. By 2015, e-cigarette use among teens had skyrocketed to 27 percent, surpassing the use of every other tobacco product. In 2017, e-cigarette use among teens dropped for the first time, according to the latest survey by the Centers for Disease Control and Prevention, though e-cigarettes are still the most favored tobacco product.

Alarmed by the uptake among kids, former surgeon general Vivek Murthy called the devices a “major public health concern” in a report on e-cigarettes last year, which the vaping industry and its allies roundly condemned. William Godshall, a longtime anti-smoking activist who promotes vaping as harm reduction, accused Murthy of lying about vapor research and threatening the lives of vapers and smokers on eJuiceMonkeys.com, which posts his newsletter. The site also posted similar reprisals from the vaping industry and its allies.

former surgeon general Vivek Murthy called e-cigarettes a “major public health concern”

Pro-vaping blogs and online forums regularly praise studies that serve their aims and condemn those that don’t. And that’s where many of the roughly 8 million vapers and owners of the rapidly rising number of vape shops and lounges — at 8,500 last year and counting, according to the CDC journal Preventing Chronic Disease — get their information. They’re also exchanging information at the growing number of meet-ups and conventions where enthusiasts can mingle with like-minded souls, geek out over the latest gear, and watch “cloud chasers” compete to blow the most impressive vapor plumes. At conventions like VapeCon, they can stock up on free samples or take a selfie with a seductively dressed Miss VapeCon. For many, vaping isn’t just a habit, it’s a way of life.

So when The Simpsons mocked industry claims that they didn’t market to kids a few years ago, many vapers weren’t amused. In the episode, Bart goes to the Kwik-E-Mart to buy e-cigs, and Apu tells him that while they’re legal for children in their state, “this is not kid stuff.” Then Apu asks, “Now would you like bubble gum flavor, strawberry shortcake, or watermelon dream?” A writer for Vaping360 complained that the show played to “common fears and misconceptions.”

Vaping advocates often describe e-cigarettes as revolutionary technology that competes with Big Tobacco, and was patented in 2003 by Hon Lik, a Chinese pharmacist who wanted to quit smoking. Yet, internal industry documents released through litigation show that tobacco companies created prototypes of electronic cigarettes decades before Lik introduced his product.

The idea then, as now, was to develop a product that reduced the harm of smoking. And as part of that effort, the tobacco industry then, like the vaping industry today, denied the harmful effects not just of tar — which is not present in e-cigarettes — but also of nicotine, which is.

In 1962, British American Tobacco-contracted scientists began work on a “smoking device”

In April 1994, two months after the FDA announced it would study nicotine’s effects, the chief executives of the seven largest US tobacco companies, including Philip Morris and Reynolds, lied under oath before a congressional subcommittee to deny that nicotine is addictive, even as they manipulated nicotine levels to promote addiction. These deceptions came to light in July 1995, when tobacco control researcher Stanton Glantz and his colleagues published the first in a series of papers that analyzed thousands of formerly confidential industry documents.

The next month, President Bill Clinton proposed sweeping regulations to curb teen smoking, noting that the FDA’s 14-month study confirmed that “cigarettes and smokeless tobacco are harmful, highly addictive and aggressively marketed to our young people.” Cigarettes and smokeless tobacco “fall well within the definitions of drug and device,” the FDA had explained, because they deliver nicotine, a drug that affects the body partly by creating and sustaining addiction as tobacco companies intended.

Philip Morris, Reynolds, and a coalition of tobacco interests wasted no time filing lawsuits, using an argument that vaping interests would later tweak. Cigarettes aren’t drugs or devices, they argued, but tobacco products, which the agency has no authority to regulate. The Competitive Enterprise Institute — which now runs interference for the vaping industry — quickly stepped in to ridicule the proposed rules. Caffeine and nicotine affect the same organs, argued Competitive Enterprise Institute general counsel Sam Kazman in a petition, so the agency may as well regulate caffeinated beverages as drugs and devices. Kazman acknowledged the petition was a stunt, but tobacco executives took his ploy a step further to argue in court that nicotine is no more harmful than caffeine — a canard promoted by vaping advocates today.

As GGOOB vowed to “protect Americans from the regulators’ heavy-handed tactics,” tobacco companies hashed out what would be the largest civil litigation settlement in US history. Forty-six state attorneys general, five US territories, and the District of Columbia sued the companies for deceptive and fraudulent practices under consumer protection and antitrust laws to recover the substantial health care costs associated with smoking. The so-called Master Settlement Agreement dismissed existing and future suits against the companies in exchange for billions in annual payments to compensate the states.

Toward that end, they hired PR firms to create divisions among tobacco control experts and weaken public health policy by identifying moderates who might promote “safer” products while attacking the credibility of moralistic “extremists” who wouldn’t.

It’s impossible to tell whether the tobacco industry’s efforts to cause dissension among tobacco control experts accounts for the polarized debate on vaping today. The industry has a history of destroying documents that might have revealed whether they carried out their plans. What’s clear, however, is that the industry continued to call on “credible third parties” like the Competitive Enterprise Institute and Americans for Tax Reform to fight regulations by attacking inconvenient research results and highlighting “abuses” of government-funded anti-tobacco programs. And now the same third parties are helping vaping interests protect e-cigarettes.

As of September 2017, eight states and the District of Columbia have passed laws to tax e-cigarettes. Every state except Michigan has at least one law on the books specifically regulating e-cigarettes, and in many states, including Michigan, local governments have adopted stronger rules. Where public health experts see taxes and regulations as proven strategies to reduce the use of tobacco and its alternatives, vaping advocates view the measures as an assault on their livelihood and individual rights. Their campaigns to fight taxes and regulations have been taken up by far-right libertarian activists like Grover Norquist, founder of Americans for Tax Reform, which has received over $1 million from Philip Morris and Reynolds since the mid-1990s. Norquist praised vapers on his podcast for helping to defeat the 2014 reelection bid of a New Mexico state representative who proposed taxing e-cigarettes as tobacco products, and for beating back tax increases in 26 states.

Last year, Americans for Tax Reform’s Paul Blair joined the Consumer Advocates for Smoke-Free Alternatives Association and the American Vaping Association on a multi-state “Right to Vape” tour to “raise awareness” that the FDA’s proposed regulations on e-cigarettes would destroy the industry. At a stop in Wisconsin, the rally’s emcee introduced an “activist and warrior for the cause,” Aaron Biebert, director of the cinematic valentine to vaping A Billion Lives. In the movie, named for cigarettes’ projected death toll over the next century, Biebert lays out a conspiracy to discredit vaping among puritanical “prohibitionists” who insist smokers “quit or die,” corrupt federal health officials addicted to revenues from tobacco industry taxes and lawsuits, and drug companies intent on quashing their competition.

Glosses on this theory echo across blogs, social media, vaping forums, and right-wing media channels. Biebert’s vilification of the federal government earned him spots on the Herman Cain Show, hosted by the 2012 Republican presidential candidate and Tea Party favorite, and the podcast of the Heartland Institute, the free-market think tank that took money from Exxon while attacking the science of climate change. Perhaps less well-known is that the Heartland Institute, which took at least $325,000 from Philip Morris in the 1990s, also helped the tobacco industry deny the evidence that secondhand smoke harms bystanders — and that Philip Morris targeted kids with its Joe Camel cartoons.

On Cain’s show, Biebert explained his movie’s central premise: e-cigarettes would save a billion lives if not for corrupt public health officials who lie about the risks of nicotine and vaping to promote innovation-destroying regulations that will kill an industry. “You can tell it’s kind of crooked, because it just doesn’t make sense,” Biebert said. “There’s no science to back it up and here they are shutting down 20,000 businesses, and they don’t care.” (Vapers’ estimates of vape shops tend to run higher than public health officials’.) Biebert went on to say that, time and again, studies show that the air around vapers is no different from “regular air.” Cain, who fought indoor smoking restrictions and took money from Reynolds as head of the National Restaurant Association, wrapped up the interview saying, “Big Brother has lied again to the American people.”

A Billion Lives calls on veteran anti-smoking activists to attack the “anti-tobacco industry” for not promoting vaping as a public health “miracle.” By presenting an alternative to cigarettes, contends David Sweanor, adjunct professor at the Centre for Health Law, Policy and Ethics at the University of Ottawa, vaping offers the “opportunity to do something that would rival the eradication of smallpox.” Godshall, an ardent defender of vaping, describes his idea of the perfect solution to the cigarette epidemic: it would be 99 percent less hazardous than cigarettes, wouldn’t be addicting nonsmokers, wouldn’t encourage anyone to switch to cigarettes, and would help lots of people quit smoking. “And it’s called vaping.”

Both Sweanor and Godshall, who broke with mainstream tobacco control experts over a decade ago, have long promoted alternative tobacco products to reduce the harm associated with smoking (see “A History of Promoting Reduced Harm,” above).

Sweanor told me he believes vaping could force the tobacco industry to stop selling cigarettes. “If the vast majority of the risk is from the smoke, and you can deliver what consumers would like without the smoke in a far less addictive way so you can greatly reduce their health risk and you can facilitate them getting off the product entirely if that’s what they want to do,” he asks, “then how do you justify selling cigarettes?”

Sweanor believes officials should inform smokers that different tobacco products carry different risks, rather than telling them to quit tobacco. “We’ve got 6 million plus deaths per year, virtually all because of a dirty delivery system,” he told me.

“Maybe e-cigarettes are 50 percent safer, or 25 percent safer, or maybe they are just as bad as cigarettes in ways that we do not know.”

But are e-cigarettes a clean nicotine delivery system? That’s not what the scientific evidence shows, Soneji says. “Maybe e-cigarettes are 50 percent safer, or 25 percent safer, or maybe they are just as bad as cigarettes in ways that we do not know.”

The concerted efforts to discount evidence from studies finding cause for concern about vaping echo the tactics of tobacco industry-funded scientists who questioned the link between cancer and smoking, Soneji notes. They sowed confusion and skepticism to undermine a growing body of evidence of smoking’s harms, which helped delay regulations on cigarettes for decades. The research on e-cigarettes is just beginning, he says, yet advocates are simply dismissing potential harms while cheerleading the benefits of vaping far beyond what the science supports.

Godshall, in contrast, insists the science is settled. He blames the “left-wing” media and government-funded scientists for spreading misinformation about the benefits of vaping. “The headlines and the news are confusing and deceiving the public about the science,” he says. “Many of the people who are being paid to conduct the science have been knowingly and intentionally manipulating their results, omitting results, selectively cherry picking and basically misrepresenting their own findings because they’re getting federal funding.”

Where did Godshall get the evidence that vaping is 99 percent safer than smoking? “Basically every study that’s ever been published,” he told me.

Long before scientists began studying vaping’s potential harms and benefits, distributors marketed e-cigarettes as a “healthier way to smoke.” Ads featuring scantily clad women claimed e-cigarettes could help smokers “stop the habit” and get “real nicotine in a harmless water vapor that you can smoke…virtually anywhere!” Where smokers saw a new gadget to satisfy their nicotine cravings, the FDA saw companies peddling a drug with unsubstantiated health claims. And in the spring of 2009, the agency blocked imports of e-cigarettes made by three Chinese manufacturers as unapproved drug delivery devices.

Smoking Everywhere, which imported and distributed the Chinese products, promptly sued the FDA, tweaking the argument tobacco companies had made a decade earlier: e-cigarettes are not nicotine or drug delivery devices, but tobacco products and therefore outside the agency’s jurisdiction. E-cigarette distributor NJOY soon joined the lawsuit, and CASAA, Godshall, and several other vaping advocates later filed a supporting brief.

Several months after seizing the products, the FDA announced that its scientists had detected tobacco-related carcinogens and toxic chemicals in some of the samples. The industry’s libertarian allies quickly rose to its defense. The American Council on Science and Health condemned the FDA for needlessly scaring the public, while Brad Rodu and Joel Nitzkin of the R Street Institute cast doubt on the agency’s science. Godshall for his part urged the FDA to consider a test by e-cigarette manufacturer Ruyan, which he said found “no product hazards.”

Godshall also actively partnered with vaping companies. “I was the person who got the two owners of NJOY and Smoking Everywhere together and helped coordinate their legal team,” he told me. NJOY and Smoking Everywhere hired the same firms that helped the tobacco industry evade regulation and defeat smokers’ liability claims for years. And their allies, including CASAA and Godshall, hired law firms that had successfully defended tobacco companies Brown & Williamson and Philip Morris against class action lawsuits brought by smokers seeking compensation from an industry they said lied about its products’ lethal nature.

“There is no smoke associated with e-cigarettes. So to call them smoking devices is ridiculous.”

In the absence of federal oversight, state and city officials proposed their own measures to regulate vaping. In spring 2014, the Philadelphia City Council proposed adding e-cigarettes to indoor smoking laws and prohibiting their sale to minors. CASAA quickly issued a call to action and distributed talking points to help vapers oppose the measures. CASAA describes itself as a grassroots organization devoted to ensuring the availability of reduced harm alternatives to smoking. Yet formerboard members have received research grants from Philip Morris, R.J. Reynolds, British American Tobacco, US Smokeless Tobacco Company, and Swedish Match, which also makes smokeless tobacco.

Godshall, Gilbert Ross, then-executive director of the American Council on Science and Health, and R Street Institute’s Nitzkin also showed up to defend vaping. Defining e-cigarettes as smoking devices is “a major distortion of the truth,” Nitzkin told the city council. Godshall urged the council to reject the bills, saying the vaping ban “deceitfully defines smoke-free e-cigarettes as electronic smoking.” Ross offered his own variation on the vaping isn’t smoking trope. “There is no smoke associated with e-cigarettes,” Ross said. “So to call them smoking devices is ridiculous.”

Yet that’s exactly what the vaping companies and their supporters called e-cigarettes in their FDA lawsuit. Smoking Everywhere — as its name suggests — described itself as a “corporation that has pioneered the marketing and importation of electronic smoking devices…marketed, labeled, and sold solely to provide adult consumers with alternative ‘smoking’ pleasure, without the inconveniences of traditional tobacco smoking.”

Godshall also resurrected the argument Kazman of the Competitive Enterprise Institute used to ridicule the FDA’s first attempt to regulate nicotine as a drug. “So, I mean, why don’t you ban coffee?” Godshall asked. “It’s got carcinogens in it, toxic chemicals.”

The Philadelphia City Council, supported by the local health department, didn’t buy his argument. Both bills passed in a unanimous votes in March 2014, a month before the FDA finally proposed its “deeming” rule to regulate e-cigarettes as tobacco products.

States have had less success than cities in passing e-cigarette legislation. In California, then-state Senator Ellen Corbett introduced a bill in 2013 to prohibit the sale of e-cigarettes in vending machines and regulate them like any other tobacco product. CASAA again rallied its base to fight the measure, arguing that e-cigarettes aren’t tobacco products, exactly the opposite of what the group claimed in a brief supporting Smoking Everywhere’s lawsuit.

In the past, cigarette companies had to create phony grassroots smokers’ rights groups to take their case to the public, says UCSF’s Stanton Glantz. “Now there are grassroots groups that popped up on their own that tobacco companies hide behind.”

And as vaping advocates fight regulations in public hearings, tobacco companies work the halls and back rooms of the capitol. Philip Morris, Reynolds American, and its allies paid lobbyists nearly $1.2 million over the 2013–14 election cycle to fight Corbett’s bill and other tobacco legislation, a review of campaign filings shows, while NJOY kicked in an additional $88,105. When the bill emerged from the Assembly Governmental Organization Committee — which tobacco control advocates call the “place where tobacco control bills go to die” — e-cigarettes were no longer defined as tobacco products. The bill died after many health advocates reluctantly withdrew their support.

Former California state Senator Mark Leno also tried to regulate e-cigarettes as tobacco products in 2015. This time, the Northern California chapter of the Smoke-Free Alternatives Trade Association (SFATA) mobilized vapers. In opposing the bill, Norcal SFATA director Stefan Didak told legislators he’s never taken money from the vaping or tobacco industry. He didn’t mention that SFATA’s board members included a former senior marketing executive for Philip Morris and a National Tobacco Company executive who claimed to have shredded a million incriminating documents for the tobacco industry in the 1990s and founded a company that makes synthetic nicotine.

Altria and its allies paid their lobbyists over $908,700 to fight Leno’s measure, while NJOY and SFATA spent $67,500. And again, the Governmental Organization Committee changed the bill’s language to say that e-cigarettes are not tobacco products. “The chair of the Assembly committee attempted to completely hijack our bill by creating a new definition of e-cigarettes, which was exactly what the tobacco industry wanted,” Leno told me. “We had to walk away from our own bill.”

The tobacco and vaping industries have spent nearly $10 million to fight regulations on e-cigarettes and related legislation in California since 2009, state records show. Altria and Reynolds American spent over $70 million in 2016 alone to fight taxes on tobacco and e-cigarettes in California. It took a special session called by Governor Jerry Brown to get around the the Assembly Governmental Organization Committee. Leno reintroduced his original bill, which passed last year along with what health advocates call the most wide-reaching package of tobacco control legislation in decades.

Recent research shows that e-cigarette users have more carcinogens in their urine than nonusers

The scope of tobacco industry spending to influence policy is no surprise to Samir Soneji, who’s well-versed in the industry’s tactics. He remains troubled that tobacco-control allies who once exposed the tobacco industry’s deceptions seem to accept the same actions by the e-cigarette industry. “It might be the same playbook but they don’t make that connection.”

Even so, the summit made him think differently about the concerns of people whose lives and livelihoods are tied to vaping. It helped him understand why adult smokers who can’t quit despite repeated attempts are willing to try e-cigarettes before there’s conclusive evidence that they work. He’s even thinking of returning to the meeting next year so he can “rile up some more animosity,” he says, recalling the boos his last appearance provoked. He’s curious if anyone will change their view of vaping in light of new studies, which are “coming out constantly.” Recent research shows that e-cigarette users have more carcinogens in their urine than nonusers, for example, in contrast to studies presented at the summit that “heavily discounted” their toxicity.

Vaping interests, meanwhile, continue to discount e-cigarettes’ harms as they’ve redoubled efforts to fight restrictions on the devices. After the FDA finalized its rule to regulate e-cigarettes as tobacco products last year, vaping companies and their allies again tapped tobacco industry lawyers to fight the FDA. Nicopure, which makes e-liquids and e-cigarettes, hired the same law firm that ran Philip Morris’ Whitecoat operation to cast doubt on the dangers of secondhand smoke. The suit again challenged the agency’s jurisdiction and argued that the rule violated companies’ constitutional rights to free speech by preventing e-cigarette manufacturers from making truthful statements about its products. “Notwithstanding plaintiffs’ rhetoric,” a federal judge wrote in rejecting the claims in July, “this provision does not ban truthful statements about health benefits or reduced risks; it simply requires that they be substantiated.”

“Banning e-cigarettes would actually increase transportation-related deaths by driving nicotine-dependent passengers to drive rather than fly,” their opening brief argued

The industry tried a more creative approach last year, when CASAA and the Competitive Enterprise Institute sued the Department of Transportation to overturn a rule extending the smoking ban on airplanes to e-cigarettes. “Banning e-cigarettes would actually increase transportation-related deaths by driving nicotine-dependent passengers to drive rather than fly,” their opening brief argued, “and would undermine rather than promote passenger comfort by subjecting passengers to nicotine withdrawal symptoms that are a common cause of “air rage.” A federal appeals court rejected their argument in July.

Tobacco control advocates scored another win during the summer, when San Francisco passed an ordinance banning the sale of flavored tobacco products. Within weeks, a group called Let’s Be Real, run by SFATA’s Didak, launched a voter petition to repeal the ban. The Competitive Enterprise Institute, R Street, and other tobacco industry allies also attacked the ban, which suggests that they fear other cities will follow suit. Let’s Be Real announced in August that it had collected far more than the required number of signatures to force a referendum on the flavor ban.

Where things get real is on the bottom line. San Francisco’s strict campaign disclosure laws require petitioners to reveal their benefactors. And the first part of that disclosure offers voters plucky, grassroots appeal: “Paid for by Let’s Be Real San Francisco, A Coalition of Concerned Citizens Supporting Freedom of Choice, Adult Consumers, Community Leaders, and Neighborhood Small Businesses.”

If that seems rosy, the punchline is somewhat more worrying: “with Major Funding by R.J. Reynolds Tobacco Company.”

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